Constitutionof Bangladesh, 1972
Articles 26 and 27–
Whether thedisqualification clause in section 7(2)(g) of UP Ordinance, 1983 offends theequality clause in Article 27 of the Constitution of Bangladesh.
As there hasbeen no corresponding disqualification for a person seeking election to theParliament, though he has alike defaulted in repayment of the same kind ofloan, it is contended, the disqualification provision offends Article 27 of theConstitution of Bangladesh which provides that "all citizens are equalbefore law and are entitled to equal protection of law," and as such,section 7(2)(g) being discriminatory in nature should be struck down in termsof Article 26 of the Constitution.
Sheikh AbdurSabur vs Returning Officer 41 DLR (AD) 30.
Articles 26(1), 27, 31 and 32–
The dictumof restitution of conjugal rights is a violation of the concept of liberty,freedom, equality and social justice enshrined in our Constitution.Consequently, the law of restitution of 'conjugal rights' is repugnant to theConstitution and as such void. No suit for restitution of conjugal rights ismaintainable in law in any Court in Bangladesh.
KhodejaBegum & others vs Md Sadeq Sarkar 50 DLR 181.
Article 27–
Thefunctions of the members of Parliament and the members of the Union Parishaddiffer widely.
LocalAuthority, although representative bodies chosen by adult franchise, have notthe autonomy of the Parliament. Indeed they are dependent on Parliament fortheir powers. The powers of a local authority derive from status and they areexercised subject to the rule of ultra vires. It is true both the members ofthe Parliament and the members of local councils are elected by the same voter;but their respective functions differ widely.
Sheikh AbdusSabur vs Returning Officer 41 DLR (AD) 30.
Article 27–
Understandableand intelligible classification of persons does not offend the equality clauseof the Constitution. The material points of difference between a member and thechairman present understandable criterion and as such their classificationcannot be termed arbitrary and fanciful. If the impugned provision in itsapplication ultimately causes any evil or mischievous result, the legislatureshall face the trial before their electorates. It is a political question. TheHigh Court Division shall only look for whether the legislature has legislatedwithin their constitutional limit.
Abdul MannanKhan vs Bangladesh 42 DLR 316.
Article 27–
Equalitybefore law–The term "equality before law" should not be interpretedin its absolute sense to hold that all persons are equal in all respectsdisregarding different conditions and circumstances in which they are placed orspecial quality and characteristics which some of them may possess but lackingin others.
In theinstant cases the impugned classification as I find was necessary in view ofthe circumstances under which ad–hoc appointments were made and allowed tocontinue for indefinite period and this classification got reasonable basishaving nexus to the object to be achieved, that is, to do justice to these ad–hocappointees by including in their service the period they served on ad–hocbasis. This benefit has been uniformly distributed to all the officers– Thosewho had been regularised earlier through the PSC and those who were regularisedunder the Ad–hoc Appointment Regularisation Rules, 1983.
Bangladeshvs Md Azizur Rahman 46 DLR (AD) 19.
Article 27–
Equalitybefore law–Equality as under Article 27 means equality between citizens orpersons of the same footing. A reasonable classification is never ultra viresof the equality clause.
Afsar AliChowdhury vs Bangladesh 43 DLR 593.
Article 27–
Classificationof government officials to accord or not to accord the benefit of purchase ofabandoned property is not repugnant to the equality doctrine. It is not for theCourt in such cases to demand from the Government a scientific accuracy on suchclassification.
Ajia Khatunvs Secretary, Ministry of Works 44 DLR 225.
Article 27–
Equalitybefore law–The order cancelling the petitioner's licence is bad in law as hewas not given a fair opportunity to controvert the allegation brought againsthim. An arbitrary and capricious order is liable to be set aside as beingviolative of Article 27.
Abul Hussainvs Bangladesh 44 DLR 521.
Article 27–
Equalityclause does not necessarily mean that every law or governmental action mustalways have similar application to all persons irrespective of differences ofcircumstances and the principle does not take away from the legislature or thegovernment the power of classifying persons for the purpose of theapplicability of a law or governmental action, provided the classificationmeets the twin tests of rationality and nexus with the object of legislation orgovernment action.
RetiredGovt. Employees vs Bangladesh 46 DLR 427.
Article 27–
Classificationof pensioners on the basis of date of their retirement has hardly any nexuswith the object sought to be achieved by the two notifications, i.e. makingprovision for sustenance of the government employees in the face of rising costof living, and as such, they are repugnant to the very concept of equality andequal protection of law.
RetiredGovt. Employees vs Bangladesh 46 DLR 427.
Article 27–
Barring athrice–elected member of the managing committee of a co–operative associationto stand for election again till the lapse of 2 years since his last termexpired as provided in section 19(2) of the Co–operative Societies Ordinance isnot an unreasonable restriction.
Abdus Sattarvs Bangladesh 45 DLR (AD) 65.
Article 27–
The twotypes of power given to the Registrar under section I 0 of the IndustrialRelations Ordinance, 1969 and section 5 of the Amendment Act, 1990 aredissimilar in their operation and field of application. There can be no parityof application of the two sections. Tbe amendment cannot be said to haveviolated Article 27 of the Constitution.
Secretary ofAircraft Engineers of Bangladesh & another vs Registrar of Trade Unions andothers 45 DLR (AD) 122.
Article 27–
Thepensioners of various categories being not on same and equal footing theirclassification is not illegal and violative of Article 27 of the Constitution.For the purpose of calculation of pension the classification of pensioners onthe basis of the last pay drawn is a real and rational classification.
BangladeshRetired Government Employees Welfare Association & others vs Bangladesh andanr 51 DLR (AD) 121.
Article 27–
The embargoon banks, insurance companies and other financial institutions to nominate itsdirectors on the Board of a financial institution is based on a reasonableclassification.
City BankLimited and others vs Bangladesh Bank and others 51 DLR (AD) 262.
Article 27–
Law requiresthat subsequent change of terms and conditions of tender must be relayed toeach and every participant so that all of them can avail of the equalopportunity while participating in the tender.
EkusheyTelevision Ltd and others vs Dr Chowdhury Mahmmod Hasan and others 54 DLR (AD)130.
Article 27–
WritJurisdiction–Transparency–On review of the process adopted in giving licenceto Ekushey Television, the conclusion is that there exists more than oneevaluation report bearing the same number and date and one of them is changedto the advantage of ETV. The process is definitely not transparent.
EkusheyTelevision Ltd and others vs Dr Chowdhury Mahmmod Hasan and others 54 DLR (AD)130.
Article 27–
All citizensare equal before law, but they may be subjected to different provisions of lawat different times, depending upon the circumstances in which they find themselves.
SA CoconutMills Ltd vs Government of the People's Republic of Bangladesh and others 54DLR 1.
Article 27–
In thebackground of the existing practice of absorbing the employees of thepetitioners category on satisfactory completion of the initial period ofemployment under a contract it can be said that there was reasonable ground forthe writ petitioners to expect for being absorbed permanently in the service ofthe Corporation.
BangladeshBiman Corporation, represented by Managing Director vs Rabia Bashri Irene andothers 55 DLR (AD) 132.
Article 27–
Since someemployees of the Corporation inter se standing in the similar situation havenot been treated in the similar manner or, in other words, have been treateddifferently from the others the contention of the writ petitioners that theyhave been discriminated against has rightly been found genuine by the HighCourt Division.
Bangladesh'Biman Corporation, represented by Managing Director vs Rabia Bashri Irene andothers 55 DLR (AD) 132
Articles 27 and 29–
When thestatus, remuneration and nature of work of Extramuharrars and TC Muharrars aremanifestly different, the basis of their classification for recruitment is realand not illusory.
Nurul Islamvs Secretary, Ministry of Law 46 DLR (AD) 188.
Articles 27 & 29–
For obviousreasons the equality before law and equality of opportunity are both governedby the principle that the equality should be qualified by the qualification ofthe citizen.
Theopportunity offered to the citizen must be subject to the qualifications of thecitizen. For example, in the posts of Muharrars all citizens of Bangladeshcannot make a prayer for appointment. Only such citizen as has the requisitequalification may be offered an opportunity for employment in the post ofMuharrars. So we have to consider whether there was discrimination among thecitizens with equal qualification and equal claim.
Nurul Islamvs Bangladesh 46 DLR 46.
Articles 27 & 29–
Classificationof those who failed in the examination for the first time like the petitionerand those who did not appear at all in such examination or failed to appear insuch examination into two categories has a reasonable basis and an intelligibledifferentia. Subsequently passing of one who failed earlier in such examinationthough securing highest position like the petitioner is immaterial as thestigma of failure sticks to him. The classification of the two categories ofofficers is not discriminatory.
A BMohiuddin Ahmed, Executive Engineer vs Bangladesh and others 49 DLR 353.
Article 27 & 29–
Arbitrarinessand the equality clauses as enshrined in both Article 27 and Article 29 of theConstitution are sworn enemies.
Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment, Governemntof the People's Repbulic of Bangladesh and others 48 DLR I.
Articles 27 & 29–
The markingsystem at the Interview tests should only be such as to be the determiningfactor only in such cases of candidates as are found equally suitable on thebasis of the objective assessment in their respective annual confidentialreports.
ShafiuddinAhmed vs Bangladesh 47 DLR 81.
Article 27 & 29–
The framersof the Constitution attached immense importance to the service of the Republicand guaranteed equal opportunity under Article 29. The words "in respectof employment" is so wide, that it includes all matters in relation toemployment, both prior and subsequent to initial appointment, subject toreasonable rules framed by the Government.
GaziJashimuddin vs Bangladesh, represented by the Secretary, Ministry of HomeAffairs, Government of Bangladesh, Bangladesh Secretariat, Dhaka & others50 DLR 31.
Articles 27 & 29–
If theexecutive prepares a list of persons for appointment in the service of theRepublic without the backing of any law behind it and actually appoints somepersons from the list, the others left out can come to the High Court Divisionnot for enforcement of any legal right but for enforcement of their fundamentalright.
Secretary,Ministry of Establishment Government of Bangladsh and others vs Md JahangirHossain and 65 others 51 DLR (AD) 148
Articles 27 & 29–
The argumentthat the fundamental right of the petitioners as provided in Articles 27 and 29of the Constitution have been violated cannot be accepted for the simple reasonthat the order of transfer from one place to another is really a matterconnected with the terms and condition of the service of the petitioners.
Jihad Ahmedand others vs Bangladesh Power Development Board and others 52 DLR (AD) 75
Articles 27 and 29–
The normalrule is that the Government· or a statutory authority must not act arbitrarilyfor the sake of transparency and accountability but a departure can be madefrom the normal rule in granting lease if a classification of those. intendingto take lease is made on a reasonable basis 'intelligible differentia' or 'withinthe permissible criteria'.
Akramuzzamanvs Government of Bangladesh, and others 52 DLR 209.
Articles 27, 29, 44 & 117–
When simpleterms and conditions of service of persons in the service of the Republic arematters–in–issue Article 117 of the Constitution applies but whea the questionof enforcement of fundamental rights is involved this Court must assumejurisdiction in view of the mandate in Article 44 of the Constitution.
ShafiuddinAhmed vs Bangladesh 47 DLR 81.
Articles 27, 29 & 102–
Since inthis writ petition the petitioner has challenged the actions of the respondentsand claimed enforcement of his fundamental rights on the allegation that therespondents infringed his fundamental rights by giving the impugned promotionsin violation of certain specific provisions and mandates of the Constitutionand since, the petitioner has not challenged· any action of the three promoteesin any manner whatsoever, the three persons are not necessary parties in thiswrit petition.
Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment,Government of the People's Republic of Bangladesh and others 48 DLR 1.
Articles 27, 29, 102 & 117–
The writpetition was not maintainable because the petitioner did not seek to enforceany fundamental right and it was within the competence of the AdministrativeTribunal to entertain the grievance of the petitioner.
JunnurRahman vs Bangladesh Shilpa Rin Sangstha (BSRS) and others 51 DLR (AD) 166.
Articles 27, 29, 102(1 )(2) & 117–
Evenassuming that a person might have concurrent remedy before any other forumincluding an Administrative Tribunal for redress of his grievance, if it is establishedthat enforcement of any fundamental rights conferred on him by Constitution isinvolved, for redress of such grievance such a person can certainly choose thisCourt as his forum in view of clause (I) of Article I 02 of the Constitutiondespite the fact that remedy may also be provided by any other forum.
Aftab Uddin(Md) vs Bangladesh, represented by Secretary, Ministry of Establishment,Government of the People's Republic of Bangladesh and others 48 DLR 1.
Articles 27 & 30–
A detenu isneither a convict nor an under trial prisoner. Under– the Jail Code, a stateprisoner is to receive treatment like civil prisoner. This does notsufficiently cover the status of a detenu. The Government should frame rulesregarding the detenu keeping in mind that he still retains some right underArticles 27 and 30 of the Constitution in spite of his detention.
KalandiarKabir vs Bangladesh and others 54 DLR 258.
Articles 27 & 31–
There is nodiscrimination in classifying the sponsors/directors of private sector banksand financial institutions or members of their families separatelyfrom the restof the people for imposing restrictions on their becoming sponsors/directors ofthe insurance companies the same has been done in public interest to save theeconomy of the country.
NasreenFatema and 20 others vs Bangladesh and others 49 DLR 542.
Articles 27 & 31–
On areference to other provisions of the Act, it is found that all the defaultingborrowers of Krishi Bank are entitled to equal protection of law provided bythe Act by way of appeal, review and revision and as such the learned Judgeswrongly held that section I OA offends Articles 27 and 31 of the Constitution.
BangladeshKrishi Bank vs Meghna Enterprises and another 50 DLR (AD) 194.
Article 27 & 31–
It must bepresumed that the law as made is consistent and valid unless the presumption isrebutted.
Karamat Aliand others vs Government of the People's Republic of Bangladesh & others 50DLR 3 72.
Articles 27 & 31–
When theJudges held that section 10A of the Act offends Articles 27 and 31 of theConstitution they ought to have struck down the section The subordinatelegislation must be knocked down when it comes in conflict with the fundamentalrights as guaranteed under the constitution.
Bangladesh KrishiBank vs Meghna Enterprises and another 52 DLR (AD) 57.
Articles 27 & 31–
Defaultingborrowers themselves form a separate and distinct class and legislature canmake stringent law against them and such law is not violative of thefundamental rights.
Anwar Karimand others vs Bangladesh Bank and others 52 DLR 1.
Article 27, 31 & 40–
Petitionersnot being absorbed as teachers of Government College need not seek reliefbefore the Administrative Tribunal–their invoking of jurisdiction on grounds offundamental rights is appropriate, speedy and efficacious.
Abdur Rahimand 6 others vs Government of Bangladesh 48 DLR 538.
Articles 27 & 133–
MujibnagarEmployees (Conditions of Service) Rules, 1980 were made for the limited purposeof treating the services rendered by such employees at Mujibnagar and treatingthe period for which the Government could not keep them employed as leavewithout pay. It cannot therefore, be said to be violative of the equalityclause of the Constitution.
Admittedly,no other provision was made about the fixation of seniority of Mujibnagaremployees counting the service rendered at Mujibnagar and about otherprovisions made in the impugned Rules before the impugned Rules were made bythe President and so the President was competent to make those Rules. Hence,those Rules were made in proper exercise of power conferred by Article 133 ofthe Constitution. Khondker Mahbubuddin Ahmed drew our attention to the case ofZainal Abedin vs Bangladesh, reported in 34 DLR 77 in which a Special Benchdeclared the Government Servants (Seniority of Freedom Fighters) Rules, 1979ultra vires of Articles 27 and 29 of the Constitution. By those Rules two yearsante–dated seniority was given to the Freedom Fighters. The said Rules are notsimilar to the instant Rules. However, the judgment passed in that case abatedwhen a Civil Appeal by certificate under Article 103(2)(a) of the Constitutionagainst the said judgment was pending before the Appellate Division.
MM SahidurRahman vs Bangladesh 46 DLR 187.
Articles 27, 47(2), 135 & 152–
BangladeshBank (Staff) Regulations–Bangladesh Bank Staff Regulations are protectedlegislation like its parent law, the Bangladesh Bank Order. Theconstitutionality of these Regulations stand beyond any question and cannot bedeclared void being inconsistent with the equality clause of the Constitution.
If there isany inconsistency between the Bangladesh Bank Regulations and these two Acts ofParliament then it is only in respect of the provision for "termination ofservice". This is because services in the Bank like that under all otherstatutory bodies are not protected by Article 135 of the Constitution.Therefore, there is no basis for argument that the Bangladesh Bank (Staff)Regulations (and for that purpose, Service Regulations of all other statutorybodies) are inconsistent with the Public Servants Retirement Act or Service Re–organisationAct. Even if there is any inconsistency, the Rule in question cannot bedeclared void for, a law may be declared void only if it is inconsistent withany provision of the Constitution. Moreover, when these Bank Regulations areimmune from attack on the ground of inconsistency with any constitutionalprovision, they cannot be held to be void because of inconsistency with any otherlaw.
BangladeshBank and other vs Mohammad Abdul Mannan 46 DLR (AD) 1.
Article 29–
Equalopportunity– Reduction of chance of promotion does not amount to deprivation ofthe right to equal opportunity for employment. No grievance could be made of newrules if they are made bonafide to meet exigencies of service.
Bangladeshvs Md Azizur Rahman 46 DLR (AD) 19.
Article 28–
Thereduction of age limit from 57 years to 35 years of the petitioner on thestrength of amended Regulation 11 does not stand on any sanction of any law,rather the same is violative of Article 28 of the Constitution.
DaliaParveen vs Bangladesh Biman Corporation and another 48 DLR 132.
Article 28–
Genderdiscrimination–The SRO published in the Bangladesh Gazette on February 5th 1984which provides that the retirement of Flight Steward (male) 45 years and FlightStewardess (female) 35 years are violative of Articles 28 of the Constitution.
Rabia BashriIrene and another vs Bangladesh Biman Corporation and another 52 DLR 308
Article 28–
The matterof fixing the age of retirement of the Stewards and Stewardesses being gender–basedthe same has rightly been held by the High Court Division discriminatory andthe discrimination so made being violative of Article 28 of the Constitution isnot legal.
BangladeshBiman Corporation, represented by Managing Director vs Rabia Bashri Irene 55DLR (AD) 132
Articles 28 & 29–
Givingbenefit to some and denying the same to others under the same agreement andservice condition is not only illegal but also the same offends therespondents' fundamental rights.
Carew andCompany (Bangladesh) Limited vs Chairman Labour Court and others 50 DLR 396.
Article 28( 4)–
Indirectelection for reserved seats whether destroyed the principle of democracy–Asystem of indirect election cannot be called undemocratic. It is provided inthe Constitution itself. Clause 4 in Article 28 provides that nothing in thatArticle shall prevent the State, which expression includes Parliament, frommaking special provision in favour of women as done by Act No. 38 of 1990.
Dr. AhmedHussain vs Bangladesh 44 DLR (AD) 109.
Article 29–
For obviousreasons the equality before law and equality of opportunity are both governedby the principle that the equality should be qualified by the qualification ofthe citizen.
Theopportunity offered to the citizen must be subject to the qualifications of thecitizen. For example, in the posts of Muharrars all citizens of Bangladeshcannot make a prayer for appointment. Only such citizen as has the requisitequalification may be offered an opportunity for employment in the post ofMuharrars. So we have to consider whether there was discrimination among thecitizens with equal qualification and equal claim.
Nurul Islamvs Bangladesh 46 DLR 46.
Article 29–
There isnothing to show that the members of Civil Services (Administration) are in anyway different from and superior to the members of other services and as suchmembers of all the services should be treated in a similar way.
Abdul Mannan(Md) vs Government and others 55 DLR 237.
Article 31–
Protectionof life means that one's life cannot be endangered by any action which isillegal, but it does not mean protection of an illegal action of any person.
Gias Uddin,son of Rahimuddin vs Dhaka Municipal Corporation, and others 49 DLR 199.
Article 31–
As the sex–workersare now confined in Vagrant Home illegally terming them vagrant, therespondents have to release them forthwith so as to enable them to go on theirown which is their fundamental right guaranteed under the Constitution.
BangladeshSociety for the Enforcement of Human Rights (BSEHR) and others vs Government ofBangladesh and others 53 DLR 1.
Article 31–
The word'life' in Pakistan Constitution is similar to the word 'life' appearing inArticle 21 of the Indian Constitution and in Article 31 of our Constitution.‘Right to life’ in Article 31 means right to sound mind and health.
ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.
Article 31–
Advertisementof cigarette and cigarette–related products are steps detrimental to life andbody of the people–Article 31 of the Constitution is directly contravened byadvertisements in any form of telecasting and broadcasting of cigarette/bidicommercials on the television and radio, billboards etc.
ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh 52DLR 413
Article 31–
It is noviolation of Article 31 of the Constitution, when the National Board ofRevenue, under the authority of law, limits the grant of private warehouselicences to Industries, having paid up capital of 10 crore takas or more.
SA CoconutMills Ltd vs Government of the People's Republic of Bangladesh and others 54DLR l.
Article 31–
As theletter impugned in the writ petition did not contain anything detrimental tothe reputation and career of the respondent, there was no violation of theprovision of Article 31 of the Constitution and, as such, the writ petition sofiled was not maintainable.
Secretary,Ministry of Law, Justice and Parliamentary Affairs & ors vs Md Borhan Uddin& ors 56 DLR (AD) 131
Articles 31 & 32–
If right tolife under Article 31 and 32 of the Constitution means right to protection ofhealth and normal longevity of an ordinay human being endangered by the use orpossibility of use of any contaminated foods, etc then it can be said thatfundamental right of right to life of a person has been threatened orendangered.
Dr MohiuddinFarooque vs Bangladesh, represented by the Secretary, Ministry of Law, Justiceand Parliamentary Affairs, Government of the People's Republic of Bangladesh 48DLR 438.
Articles 31 & 32–
Upon theirwholesale eviction from Tanbazar and Nimtali prostitutes have been deprived oftheir livelihood which amounts to deprivation of the right to life making theaction unconstitutional and illegal.
BangladeshSociety for the Enforcement of Human Rights (BSEHR) and others vs Government ofBangladesh and others 53 DLR 1.
Articles 31 & 32–
All personswithin the jurisdiction of Bangladesh are within Bangladesh rule of law. Theforeign investors in ETV are no exception to this principle.
EkushayTelevision Ltd and others vs Dr Chowdhury Mahammod Hasan and others 54 DLR (AD)130.
Articles 31 & 32–
'This Courtis oath–bound to protect the Constitution including the fundamental rights ofthe citizens and is obliged to enforce the same even in the absence of anyappropriate legislation.
ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.
Articles 31 & 32–
The Statehas a duty to protect the ordinary human being from the ill effects of the useof. tobacco–related products.
ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.
Articles 31 & 32–
The actionof the respondents in converting the open space meant for park is without anylawful authority as the same is violative of fundamental right and detrimentalto the health and well–being of the people of the area.
M SaleemUllah, Advocate and others vs Bangladesh and others 55 DLR 1.
Articles 31, 32 & 102–
In writjurisdiction the Court is unable to give any direction on the house ownersexcept observing a caution that nobody should take the law in their handsviolating the rights protected under the law and the fudamental rights underthe Constitution.
BangladeshSociety for the Enforcement of Human Rights (BSEHR) and others vs Governmentof Bangladesh and others 53 DLR 1.
Articles 31 & 39(2)–
In view ofthe provision made in the Press Council Act prayer for directions upon thegovernment to frame guidelines as to the petitioner's right to reputation hasno basis.
Aminul HaqueShamim (Md) vs Secretary, Ministry of Information and others 55 DLR 90.
Articles 31, 40 & 102–
Thepetitioners who are businessmen have no fundamental right to stop constructionwork undertaken in public interest on the plea of the loss of their business.Business loss is no ground for invoking extraordinary power of the Court underArticle 102 of the Constitution.
Abdul Momenand others vs Dhaka City Corporation 50 DLR 300.
Articles 31, 40 & 102–
Contractualobligation–Writ jurisdiction–Ramna Cafeteria being a property of the governmentunder the PWD is not distinguishable from Government property like fisheries,etc. The Government is equally the owner of all of them which are leased out tothe successful bidders according to the rules in exercise of powers rooted instatute. The contract between the parties was not an ordinary contract betweenordinary tenderer and buyer, rather the Government acted in this case in thecourse of administration of the affairs of the Republic.
ShahadatHossain vs Executive Engineer 44 DLR 420.
Articles 31 & 102–
It isdoubtful whether the impugned order relating to the Bank's claim is appealableand then in the writ petition the very vires of section 1 OA of the PDR Act hasbeen challenged. Writ jurisdiction is the proper jurisdiction for deciding suchconstitutional point.
M MEnterprise Limited vs General Certificate Officer 45 DLR 407.
Articles 31 & 102–
Theprovisions as to fundamental rights in our Constitution are self executory andany violation of the provisions of Article 31 is subject to judicial review andthis court could remedy the wrong by issuing appropriate declarations anddirections for enforcement of any of the fundamental rights.
ProfessorNurul Islam and others vs Government of the People's Republic of Bangladesh& ors 52 DLR 413.
Articles 31 & 102(2)(b)–
Everycitizen has an inalienable right to be treated in accordance with law– Mereinsertion of a section of some law in the order of detention is not enough. Theprovision of law must be strictly followed. Under Article 102(2)(b) of theConstitution the Court is to be satisfied that the detenu is not being held incustody without lawful authority– The Court is to see whether the grounds ofdetention supplied to the detenu are supported by materials.
FaisalMahbub vs Bangladesh 44 DLR 168.
Article 32–
"Savein accordance with law" as mentioned in Article 32 not only refers tocriminal law but also civil law which provides for arrest and detention,namely, for recovery of decretal dues and public dues.
State vsFaisal Alam Ansari 53 DLR (AD) 43.
Article 32–
Keeping ofany prisoner in jail after he served out the sentence amounts to violation ofHuman Rights and Fundamental Rights guaranteed by the Constitution.
FaustinaPereira, Advocate Supreme Court vs State and others 53 DLR 414.
Articles 32 & 33–
Jurisdictionalfacts for detaining a person–Since the detaining authority is curtailing theliberty of a citizen by detaining him on preventive detention, it is exercisinga quasi–judicial authority. To curtail fundamental rights of personal libertyenshrined in the Constitution it is essential that the detaining authority musthave reports and materials, that is 'jurisdictional facts' for exercising powerto detain the detenu under the Special Powers Act.
Anisul IslamMahmood vs Bangladesh 44 DLR 1.
Article 32 & 36–
The PassportOrder itself contemplates that reasons for revocation of a passport should bein writing and a copy thereof be supplied to the person concerned on demand orthe same may be refused in the interest of sovereignty, integrity or securityor in the public interest. The order of revocation of passport having beenpassed without a notice of show cause against any grounds for revocation is notin accordance with law and it violates the fundamental right guaranteed underArticles 15, 27, 32 and 36 of the Constitution.
Syed MokbulHossain vs Government of Bangladesh, represented by the Secretary, Ministry ofHome Affairs, Bangladesh Secretariat, Dhaka and others 44 DLR 39.
Articles 33 & 32–
'Jurisdictionalfacts' for detaining a person–Since the detaining authority is curtailing theliberty of a citizen by detaining him on preventive detention, it is exercisinga quasi–judicial authority. To curtail fundamental rights of personal libertyenshrined in the Constitution it is essential that the detaining authority musthave reports and materials, that is 'jurisdictional facts' for exercising powerto detain the detenu under the Special Powers Act.
Anisul IslamMahmood vs Bangladesh 44 DLR I.
Article 33(1)–
Since thedetenu was arrested under section 54 of the Code it was incumbent upon thepolice to produce her before a Magistrate within 24 hours but the police havingnot done so the right guaranteed to her under the Constitution has beenviolated.
Mehnaz Sakibvs Bangladesh 52 DLR 526.
Article 33(5)–
Thepetitioner having been living in Bangladesh is entitled to the protection underArticle 33(5) of the Constitution and as such the detaining authority was underconstitutional obligation to communicate grounds of detention as soon as maybe.
ProfessorGhulam Azam vs Bangladesh 46 DLR 29.
Article 35( 4)(5)–
The accusedhad already been taken to police remand twice, yet there is nothing before thecourt to show the outcome of such remand– The respondents are directed not togo for further remand of the accused and in case of the ongoing remand heshould not be subjected to physical torture of any kind.
Ministry ofHome Affairs 56 DLR 620.
Article 35–
Submissionthat the principle of 'double–jeopardy is applicable to punishment ofgovernment servant in a departmental proceeding is not acceptable. Protectionin respect of trial and punishment as a bar to conviction and punishment morethan once for the same offence as referred to in this article relates tocriminal prosecution only.
Md SerajulIslam vs The Director General of Food 42 DLR (AD) 199.
Article 35(2)–
Proceedingbefore a departmental enquiry committee is not a criminal proceeding to protecta person's right guaranteed under Article 35(2) of the Constitution against doublejeopardy.
Shaikh (Md)Harun–or–Rashidvs Secretary, Ministry of Jute, Government of the People'sRepublic of Bangladesh and others 49 DLR 596.
Article 35(2)–
The ambitand contents of the guarantee of the fundamental right given in Article 35(2) aremuch slender than those of the Common Law rule in England.
Shaikh (Md)Harun–or–Rashid vs Secretary, Ministary of Jute, Government of the People'sRepublic of Bangladesh and others 49 DLR 596.
Article 35(2)–
The wholebasis of section 403(1) of the Code as well as Article 35(2) is that the firsttrial should have been before a Court competent to hear and determine the caseand to record a verdict of conviction or acquittal–if the court is not socompetent, the whole trial is null and void and it cannot be said that therewas any conviction or acquittal in force such a trial does not bar a subsequenttrial of the accused.
Muhammadullahvs Sessions Judge and others 52 DLR 374.
Article 35(3)–
No stringentprovision has been incorporated in the new law even regarding bail. There is noreason how this reduction of the time limit will affect the petitioners whenthe other conditions relating to trial remains the same. Article 35 clearlyprovides that a person accused of a criminal offence shall have the right to aspeedy trial.
MuhiburRahman Manik and others vs Bangladesh and others 55 DLR 636.
Article 35( 4)–
On the faceof the impugned orders, there is nothing to suggest that the respectivepetitioner was made accused and formal accusation had been made against him. Itcannot, also, be said that as accused person he is being compelled to giveevidence against himself. Article 35(4) of the Constitution will be attractedonly if the proceedings 'started with the accusation' and the person who seeksits protection is already an accused person and he is being compelled to makethe statement.
MustafizurRahman and 3 others vs DG, Anti–Corruption and others 49 DLR 599.
Article 35(4)–
In theenquiry the petitioners can very well controvert the allegations against them.It cannot be suggested that by mere issuance of notices the petitioners arecompelled to give evidence against themselves. Article 35(4) therefore is of noavail to the petitioners.
AKMMuhituddin vs State 51 DLR 274.
Article 35( 4)–
The contentionthat action of notice by the respondent No. 3 was violative of Article 35(4) ofthe Constitution is of no substance since the same were issued in connectionwith an enquiry as regards the information received against the petitioners.The petitioners are not accused of any offence and, as such, protection underArticle 35(4) is not available to them.
Abu Siddiqueand anr vs Ministry of Defence & ors 54 DLR (AD) 154.
Article 35(4)–
There is nofundamental right to privacy or secrecy in respect of property and wealth of aperson and therefore calling upon the petitioners to submit statement of theirproperties does not violate any fundamental right guaranteed by theConstitution.
TariqueRahman vs Director General, Bureau of Anti–Corruption and others 52 DLR 518.
Article 35(4)–
It is notunderstandable how a police officer or a Magistrate allowing 'remand' can actin violation of the Constitution and provisions of other laws including thisCode and can legalise the practice of 'remand'.
BangladeshLegal Aid and Services Trust (BLAST) and others vs Bangladesh and others 55 DLR363.
Article 35(4)–
The verysystem of taking an accused on 'remand' for the purpose of interrogation andextortion of information by application of force is totally against the spiritand explicit provisions of the Constitution.
BangladeshLegal Aid and Services Trust (BLAST) and others vs Bangladesh and others 55 DLR363.
Articles 35(4) & 102–
This Court,in exercise of its power of judicial review when finds that fundamental rights.of an individual has been infringed by colourable exercise of power by thepolice under section 54 or 167 of the Code, the Court is competent to awardcompensation for the wrong done.
BangladeshLegal Aid and Services Trust (BLAST) and others vs Bangladesh and others 55 DLR363.
Article 35(5)–
In case ofmalafide the matter of non–disclosure will be justiciable one. But for theclear constitutional sanction a non–disclosure of fact that was considered tothe prejudice of the detenu ought to be regarded as a violation of basicprinciple of natural justice.
Habiba,Mahmud vs Bangladesh 45 DLR (AD) 89.
Article 36–
The PassportOrder itself contemplates that reasons for revocation of a passport should bein, writing and a copy thereof be supplied to the person concerned on demand orthe same may be refused in the interest of sovereignty, ,integrity or securityor in the public interest. The order of revocation of passport having beenpassed without a notice of show cause against any grounds for revocation is notin accordance with law and it violates the fundamental right guaranteed underArticles 15, 27, 32 and 36 of the Constitution.
Syed MokbulHossain vs Government of Bangladesh, represented by the Secretary, Ministry ofHome Affairs, Bangladesh Secretariat, Dhaka and others 44 DLR 39.
Article 36–
An orderpassed by the passport authority revoking a passport is subject to judicialreview on the ground that the order is malafide or that the reasons for makingthe order are extraneous or they have no relevance with the public interest orthey cannot possibly support the making of the order in the interest of generalpublic. Any procedure which permits impairment of the constitutional right togo abroad without giving a reasonable opportunity to show cause cannot but becondemned as unfair and unjust.
EkramIbrahim Lady vs Bangladesh 47 DLR 256.
Article 36–
TheFundamental Rights of freedom of movement attached to a citizen pervade andextend to every inch of the territory of Bangladesh stretching upto thecontinuental shelf: Per Mustafa Kamal J delivering the Full Court Judgment.
Dr MohiuddinFarooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation,Water Resources and Flood Control and others 49 DLR (AD) 1.
Article 38–
The initialburden of establishing a right claimed under Article 38 is on the applicant andthen the burden moves on to the respondents if they take the plea of reasonablerestriction.
Asaduzzamanvs Bangladesh 42 DLR (AD) 144.
Article 38–
Cannot beinvoked for support, sustenance or fulfilment of every object of anassociation.
Asaduzzamanvs Bangladesh 42 DLR (AD) 144.
Article 38–
Freedom ofassociationArticle 38 guaranteeing this freedom cannot be invoked for support,substance or fulfillment of every object of an association. Though the RedCrescent Society is an association of persons it is · an association suigeners. As the appellant's right does not flow from his right to form anassociation he cannot claim any right under Article 38.
Asaduzzamanvs Bangladesh 42 DLR (AD) 144.
Article 38–
Provisionsof this Article guaranteed the right to every citizen to form association orunion, subject to any reasonable restrictions. This right is not available to aperson other than a citizen of Bangladesh but it is not a restrictiveprovision. Becoming head of a political party itself cannot be a ground to holdthat it is necessary to prevent such a person for the sake of security of thestate.
ProfessorGhulam Azam vs Bangladesh 46 DLR 29.
Article 38–
Formingassociation–The guarantee as to the right of forming an association or union asin Article 38 of the Constitution is limited to the right of formation only. Itdoes not follow that all its purposes and its consequent registration foracting as a bargaining agent is also guaranteed by the Constitution.
Abu Hossainvs Registrar of Trade Unions 45 DLR 192.
Article 38–
The right toconstitute a separate trade union for workers with international affiliationsis not provided for either in the unamended Industrial Relations Ordinance,1969 or in the Amendment Act, 1990. the amended legislation cannot be said tobe violative of the fundamental right on the ground of loss of internationalaffiliation.
Secretary ofAircraft Engineers of Bangladesh & another vs Registrar of Trade Unions andothers 45 DLR (AD) 122.
Article 38–
The right toform an Association or union embraces the right to form a trade union and alsothe right to continue and· carry on the activities of the association. Theright is subject only to reasonable restrictions in the interest of morality orpublic order.
Secretary ofAircraft Engineers of Bangladesh & another vs Registrar of Trade Unions andothers 45 DLR (AD) 122.
Article 38–
Reasonablerestrictions on certain persons becoming directors in public interest has notviolated their right to form association· as share holders in any manner.
NasreenFatema and 20 others vs Bangladesh and others 49 DLR 542.
Articles 39 & 70–
Freedom ofconscience while voting as a member of the Parliament– Freedom of conscienceguaranteed under the Constitution would relate· to private liberty to choosebetween two alternatives as directed by the elector's sense of moral values, inthose areas oflife where the result of one's effort affects none else but onlythe individual. It is not to be extended to a voting system where the member ofthe Parliament is choosing a President both as an individual and in hiscapacity as a representative of the people.
Abdus SamadAzad vs Bangladesh 44 DLR 354.,
Articles 38 and 102–
Appellantcannot claim protection under Article 38 of the Constitution as his right doesnot flow from his right to form an association. He can claim protection underArticle 102 of the Constitution for enforcement of his statutory right but hecannot claim that his right under the statute cannot be modified, altered oraffected by an amendment of the statute.
Asaduzzamanvs Bangladesh 42 DLR (AD) 144.
Articles 39 & 102–
"Personaggrieved" – Its meaning and dimension–In our Constitution the petitionerseeking enforcement of a fundamental right must be a person aggrieved. OurConstitution is not at pari materia with the Indian Constitution on this point.The decisions of the Indian jurisdiction on public interest litigation arehardly apt in our situation. The petitioner is not acting pro bona publico butin the interest of its members. The real question in this case is whether thepetitioner has the right to move the writ petition in a representativecapacity. The High Court Division has rightly relied upon the case of 29 DLR188 where the question has been answered in the negative. The petitioner mayrepresent the employers in the Wage Board but its locus standi to act on behalfof the Constitution is just not there.
BangladeshSangbadpatra Parishad (BSP) vs Bangladesh 43 DLR (AD) 126.
Articles 39(1) & 141(1)–
Theintention of the publication was to make the real Muslims aware about the falseinterpretation given by the so–called half–educated and preachers of Islam. Theallegation does not come within the ambit of the offence of section 295A ofPenal Code against the petitioners.
ShamsuddinAhmed and others vs State and another 52 DLR 497.
Article 39(2)–
Freedom ofspeech and expression occurring in clause (2) of Article 39 of the Constitutionmeans a right to express one's own opinion absolutely freely by spoken words,writing, printing, painting or in any other manner which may be open to theeyes and ears. It thus includes expression of one's ideas on any matter by anymeans including even gestures, postures, banners and signs. It appears to usthat this freedom is wide enough to include expression of one's own originalideas and also expression of one's opinion in the form of comments,explanations, annotations, solutions and answers to questions on the ideasexpressed by others.
Dewan AbdulKader vs Bangladesh 46 DLR 596.
Article 39(2)–
Fundamentalright can never be invoked for violating any provision of law or other man'sright under the law.
BangladeshNational Curriculum and Text– Book Board vs AM Shamsuddin & others 48 DLR(AD) 184.
Article 39(2)–
The right tofreedom of speech and expression as claimed by the writ petitioners does notextend to the right of printing and publishing of 'note–books' or 'text–books'prepared and published by the Text Book Board under statutory authority. TheCourt was not justified in declaring the impugned Act to be ultra vires ofArticle 39(2) of the Constitution.
BangladeshNational Curriculum and Text–Book Board vs AM Shamsuddin & others 48 DLR(AD) 184.
Article 39(2)–
Hartal–Callfor hartal per se is not illegal but where any call for hartal is accompaniedby threat it would amount to intimidation and the caller of hartal or strikewould be liable under the ordinary law of the land.
KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.
Article 39(2)–
Hartal–lawlessness–TheState need not worry that the Court's view on Hartal will disable it frompreserving the peace. It is not suggested that Article 39(2) of theConstitution forbids to prevent imminent lawlessness which will follow fromcall for hartal. (Per Mainur Reza Chowdhury J).
KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.
Article 39(2)–
Hartal is ameans of protest by the people at large or by a group of a particular class ofsociety. It is called for communicating thoughts, discussing public questions,ventilating grievances to the concerned authority regarding legitimate claims.
KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.
Article 39(2)–
For allintents and purposes the declaration that the calling of hartal and holding ofit is illegal is tantamount to enacting a law prohibiting hartal.
KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.
Article 39(2)–
There beingadequate remedy under the existing laws the writ Court will be loath to grantthe declamatory relief sought for by the petitioner. (Per MA Aziz J (agreeing).
KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.
Article 39(2)(a)–
Hartal– Acall for hartal without any threat, expressed or implied, would be anexpression of protest which is guaranteed by Article 39(2)(a) of ourConstitution.
KhondakerModarresh Elahi vs Government of the Peoples Republic of Bangladesh 54 DLR 47.
Article 40–
Right toprofession–The impugned restriction on the petitioner's right to be enlisted asa contractor may be bonafide and in the interest of the Board but when itinterferes with his fundamental right to profession, the restriction cannot beallowed to exist unless authorised by law.
Abdul Jalilvs Chairman 45 DLR 24.
Article 40–
Under thisArticle of our Constitution reasonable restriction can be imposed on a person'sentering upon any lawful profession or occupation and to conduct any lawfultrade or business.
NasreenFatema and 20 others vs Bangladesh and others 49 DLR 542.
Articles 40, 102 & 31–
Contractualobligation–Writ jurisdiction–Ramna Cafeteria being a property of theGovernment under the PWD is not distinguishable from Government property likefisheries, etc. The Government is equally the owner of all of them which areleased out to the successful bidders according to the rules in exercise ofpowers rooted in statute. The contract between the parties was not an ordinarycontract ·between ordinary tenderer and buyer, rather the Government acted inthis case in the course of administration of the affairs of the Republic.
ShahadatHossain vs Executive Engineer 44 DLR 420.
Article 41 –
Right toprofess religion – the right of the Ahmadiyya community to preach theirreligious beliefs is subject to law, public order and morality. The book havingcontained matters which are deliberately and maliciously intended to outragethe religious beliefs of the bulk of the Muslims, the Government was justifiedin forfeiting the book.
BangladeshAnjuman-e-Ahmadiyya vs Bangladesh 45 DLR 185.
Article 41–
It is in no waydesirable for the higher court, whose decision has binding effect on the courtssubordinate to it, to embark on a matter which is totally unconnected with thesubject matter before it.
Islamic LawResearch Centre and Legal Aid Bangladesh vs Eva Sunanda Chowdhury and others 54DLR (AD) 168.
Article 41–
Rights arenot absolute–Restriction may be imposed by law for the sake of public order ormorality. But such restrictions must be reasonable and what is reasonable maydepend on the facts and circumstances under which such restrictions may beimposed. Restrictions may be imposed to regulate the activities of a religiousgroup and only in extreme cases prohibition may be imposed.
DewanbaghDarbar Sharif and another vs Bangladesh and others 54 DLR 413.
Article 41–
Thepetitioner also approached the authority concerned to set up a permanent policecamp in the campus. So, the entry of the police within the campus was notillegal rather the entry was to secure and maintain law and order andtranquillity in the locality. This action is permitted under the provisions ofArticle 41 of the Constitution.
DewanbaghDarbar Sharif and another vs Bangladesh and others 54 DLR 413.
Article 41–
There is nolaw which allows the law enforcing agencies to prohibit a particular religiousgroup from discharging their function for an indefinite period. The lawenforcing agencies will be at liberty to take necessary action if the situationdemands but prohibiting the petitioner and his devotees from entering into thecampus cannot be justified.
DewanbaghDarbar Sharif and another vs Bangladesh and others 54 DLR 413.
Article 42–
Right toproperty– Option for migration to Pakistan cannot take away one's right ofcitizenship as well as right to property guaranteed under this provision of theConstitution. In this view of the matter enlistment of the petitioner's houseas an abandoned property and the decision of the Court of Settlement treatingthe property as such were declared unlawful.
AbdulKhaleque vs Court of Settlement 44 DLR 273.
Article 42–
The veryfact that the inclusion of the disputed property as abandoned property has beenfound to be ex facie void for want of jurisdiction and in violation of Article42 of the Constitution, the petitioner can come directly to this court forprotection of their fundamental right even though an alternative remedy isavailable.
Syeda ChandSultana and others vs Bangladesh and others 48 DLR 547.
Article 42–
Govemmentcan acquire and requisition property by authoirty of law and such acquisitionand requisition cannot be called in question in view of Article 42(2) of theConstitution.
M A Salamalias Abdus Salam vs Government of the People's Republic of Bangladeshrepresented by the Secretary, Ministry of Land Administration and Land Reforms47 DLR 280.
Articles 42 & 102–
Thepetitioner being a "person aggrieved" by enlistment of her house asabandoned property can maintain a writ petition irrespective of whether she hasother equally efficacious remedy or not.
SarwariBegum vs Bangladesh 45 DLR 571.
Articles 42 & 102–
Petitioner'sproperty in question having not fallen within the mischief of AbandonedProperty treating the property as abandoned property and inclusion of the samein the 'kha' list of abandoned buildings are violative of the petitioner'sfundamental right. Nurunnahar Begum and others vs Government of the People'sRepublic of Bangladesh represented by the Secretary.
Ministary ofWorks, Bangladesh and another 49 DLR 432.
Articles 42 & 102–
The writpetitioners can come directly to the High Court Division for protection oftheir fundamental right even though an alternative remedy is available.
Governmentof Bangladesh, represented by Ministry of Works and another vs Syed ChandSultana and others 51 DLR (AD) 24.
Articles 42 & 102(1) & (2)(a)(ii)–
Inclusion ofthe disputed property in the list of abandoned properties by the Gazettenotification having been found to be without jurisdiction, the notification isin violation of the petitioner's right to hold property. Even if hisfundamental right would not have been affected his writ petition would lieinasmuch as the alternative remedy of invoking the jurisdiction of the Court ofSettlement became non–existent in the meantime.
AlhajMohammad Rahimuddin Bharasha vs Bangladesh 46 DLR 130.
Articles 42(2) & 116A–
SinceLegislature is competent to legislate fixing amount of compensation as well asmanner of assessment of compensation, the amendment made in sections 31 and 34of the Ordinance cannot be said to have violated the right of the petitionersto have adequate compensation in respect of the land acquired under theOrdinance.
ShahjahanAli Khan (Md) and others vs Government of Bangladesh and others 52 DLR 99.
Article 43(a)–
Thesubmission that by search and seizure no fundamental right of the petitioner isviolated is misconceived on the facts of the instant case.
Governmentof Bangladesh and others vs Hussain Mohammad Ershad 52 DLR (AD) 162.
Article 43(a)–
Searchconducted with a duly issued search warrant by a competent court under section96 CrPC is a reasonable restriction on the rights enumerated in Article 43(a)of the Constitution. But without complying with the requirement of section 96CrPC no such restriction on the right of a citizen can be imposed. 52DLR (AD) 172.
Articles 44 & 102–
Writjurisdiction challenging the order of the Election Appeal Board, a private bodynot performing any function in connection with the affairs of the Republic, isfound to have been invoked as a sportive chance and not maintainable. Ruleissued thereunder is discharged with cost.
KhorshedAlam, Managing Director of Spark Engineering & Construction Ltd vs Ministryof Commerce, Government of the People's Republic of Bangladesh, Secretariateand others 47 DLR 209.
Article 44–
A governmentservant punished with major penalty in a departmental proceeding can come tothe Supreme Court judicial review under Article 44 of the Constitution readwith Article 102(1) for enforcing fundamental rights after exhausting administrativeremedies including appeal and remedies before the Administrative Tribunal andAdministrative Appellate Tribunal. Case relied on is Sampad Kumar vs Union ofIndia AIR 1987 (SC) 386.
SerajulIslam vs DG Food 43 DLR 237.
Articles 44 and 94–
Doctrine ofbasic feature–In our context, it has indigenous and special difficulties foracceptance–'Basic features' in relation to which period–What were basic to ourConstitution when it was promulgated on 16–12–1972–'Basic features' have beenvaried in such abandon and with such quick succession · that the credibility inthe viability of the theory of fundamentally is bound to erode– The experienceof abandoning this Supreme Court and establishing two altogether differentCourts, the Supreme Court and the High Court, in a unitary state byProclamation Order No. IV of 1976 and then again doing away with the same byrestoring the integrated Supreme Court by Proclamation Order No. I of 1977 wascited as instances of the non–viability of the theory.
AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.
Articles 44 and 94 to 116–
The impugnedamendment has violated Articles 44 and 102– It has disrupted the provisionsrelating to the judiciary embodied in Article 94 by adding alien concept by wayof introducing 'Permanent Benches'–The amendment has also expressly contravenedArticle 101.
AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.
Articles 44, 102(1)(5) & 117(2)–
"Exhaustionrule"– No one is entitled to move the Court for a supposed or threatenedinjury until all the available remedies of the administrative authorities havebeen exhausted including appeal to the administrative superior. The 'exhaustionrule' cannot be avoided on the ground of irreparable injury or expeditiousnessof judicial remedy. After exhausting all available remedies the petitioner canattempt to move this Court for enforcement of fundamental rights.
Abdul HannanKhan vs Ministry of Home Affairs 43 DLR 131.
Articles 44, 100 (5) and 114 –
Sub–article(5) of Article 100 is inconsistent with Articles 44 and 114.
AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.
Articles 44 and 114–
Interpretationof constitutional amendment–Articles 44 and 114 to be read together to find outthe mandate of the Constitution–The entire Constitution is to be looked into ininterpreting the Constitution.
AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) I 65.
Articles 44(1)(2), 100(5), 102 and 114–
Two sests ofCourts created by sub–article(5) of Article 100–Constitutionality of amendment–Theamendment is hit by Article 114–Setting up of subordinate Courts by lawoccurring in Article 114 must not be of co–ordinate jurisdiction or competewith Article 44(2) which speaks of "without prejudice to the power of HCDivision under Article 102".
AnwarHussain Chowdhury vs Bangladesh 41 DLR (AD) 165.
Article 45–
A member ofthe disciplined force can move the High Court Division for enforcement offundamental rights subject to the provisions of Article 45.
Col MdHashmat Ali (Retired) of Bangladesh Army Medical Corps vs Government ofBangladesh and another 47DLR (AD) 1.
Article 45–
Provision ofthis Article does not apply in a case where the order is passed for promotionof a member of the disciplined force and, as such, the order impugned here is notimmune from judicial review.
MajorGeneral Moinul Hossain Chowdhury vs Government of Bangladesh, and others 50 DLR370.
Articles 45, 102 & 134–
Where anorder is passed retiring a member of disciplined force such an order is beyondthe scope of judicial review under Article 102 of the Constitution as such theorder comes within the purview of Article 134 of the Constitution.
MajorGeneral Moinul Hossain Chowdhury vs Government of Bangladesh, and others 50 DLR370.
Articles 45, 102 & 134–
A member ofany disciplined force will not be entitled to any remedy if he is aggrieved byany decision of a Court unless the decision is coram non Judice or malafide, orby any order affecting his service or by order of the President or by anyviolation of fundamental right resulting from application of a disciplinary lawor the maintenance of discipline.
Col MdHashmat Ali (Retired) of Bangladesh Army Medical Corps vs Government of Bangladeshand another 47 DLR (AD) 1.
Article 47(2)–
BangladeshBank (Staff) Regulations–Bangladesh Bank Staff Regulations are protectedlegislation like its parent law, the Bangladesh Bank Order. Theconstitutionality of these Regulations stand beyond any question and cannot bedeclared void being inconsistent with the equality clause of the Constitution.
BangladeshBank and others vs Mohammad Abdul Mannan 46 DLR (AD) 1.